Volume 157 — Missouri Reports

— Hon. B. M. Hughes, Judge. (1) Tbe will was properly executed. Mays v. Mays, 114 Mo. 536; Berberret v. Berberret, 131 Mo.'399. (2) There was no evidence sufficient to show that the testator was of unsound mind or not capable of making a will at the time, and instruction No. 1 asked by the defendants to this effect should have been given.

<p>Appeal from St. Louis City Circuit Court. — Now. Jacob . Klein, Judge.</p> <p>(1) Tbe court erred in refusing tbe instructions offered by plaintiff. Burke v. City of Kansas, 34 Mo. App. 580; Johnson Oo. v. Lowe, 72 Mo. 637; Lewis v. Tagel, 77 Hun. (N. Y.) 347; Bonesteel v. Mayor, etc., of N. Y., 22 N. Y. 167; Glacius v. Black, 50 N. Y. 150; Woodruff v. Baih’oad, 108 N. Y. 48; Adlard v. Muldoon, 45 Ill. 195; Eex v. Peto, 1 Young & Jarvis’ Eeports, 37; Stuart v. Cambridge, 125 Mass. 109; McIntosh, v. Hastings, 156 Mass. 348; Baltimore Cemetery Oo. v. Coburn, 7 Md. 202; Bond v. Mayor, etc., of Newark, 19 N. J. Eq. 382; Jones v. Queen, 7 Can. Supt. Ot. Eep. 600; Flesh v. Christopher, 11 Mo. App. 491; Ahern v. Boyce, 19 Mo. App. 556; Halpin v. Manny, 33 Mo. App. 388; Mohney v. Eeed, 40 Mo. App. 99; Boteler v. Eov, 40 Mo. App. 234; O. P. Deatherage Lumber Co. v. Snyder, 65 Mo. App. 568; Oberlies v. Bullin-ger, 75 Hun. (N. Y.) 253; Fitzgerald v. Moran, 141 N. Y. 419; Hartupee v. Pittsburg, 97 Pa. St. 107; Mitchell v. Wiseotta Land Co., 3 Iowa, 209; Supervisors, etc., v. Patrick, 54 Miss. 240; The Queen v. Starrs, 17 Can; Supt. Ct. Eeports, 128; Lloyd on Law of Building and Buildings, p. 17, sec. 12 (Ed. 1894); 2 Am. & Eng. Ency. of Law (2 Ed.), p. 820; Trustees, etc., v. Broadfield, 30 Ga. 1; Yeats v. Ballentine, 56 Mo. 530; Haysler v. Owen, 61 Mo. 270; Smith v. Brady, 17 N. Y. 173; Yan Buskirk v. Murden, 22 HI: 446; Gallagher v. Mintum, 50 N. Y. Sup. 491; Mechanics’ Bank v. Schaumburg, 38 Mo. 228; State v. Bank, 45 Mo. 528; Glass v. Eowe, 103 Mo. 513; Mechem on Agency (Ed. 1889), sec. 308. (2) The entire record of this case shows that the theory of the trial court and the theory of plaintiff’s counsel were utterly at variance and unalterably opposed to each other. Under the court’s theory, the defendants were not liable for furnishing labor or materials at variance with the terms of the contract and specifications, provided plaintiffs architect knew of such variance or could, by the exercise of the care of an ordinarily skillful and experienced architect, have discovered the same. On the other hand, plaintiffs counsel contended for the rule that, without plaintiffs knowledge and consent, the architect could consent to the incorporation in that building- of nothing except what was strictly in accordance with the terms of the contract and specifications; that the written contract, of which the defendants as parties thereto had knowledge, set the bounds and limitations of his authority; and that if in dealing with defendants, he stepped outside of the boundaries therein prescribed, such act or acts were unauthorized and would not bind this plaintiff. Burke v. City of Kansas, 34 Mo. App. 580; Johnson v. Lowe, 72 Mo. 63?; Lewis v. Yagel, ?7 Hun. (N. Y.) 337; Bonesteel v. Mayor, etc., of N. Y., 22 N. Y. 162; Glacius v. Black, 50 N. Y. 150; Woodruff v. Bailroad, 108 N. Y. 48; Adlard v. Muldoon, 45 Ill. 195; Eex v. Peto, 1 Young & Jarvis’ Eeports, 37; Stuart v. Cambridge, 125 Mass. 109; McIntosh v. Hastings, 156 Mass. 348; Baltimore Cemetery Co. v. Hastings, 7 Md. 202; Bond v. Mayor of Newark, 19 N. J. Eq. 382; Jones v. The Queen, 7 Can. Sup. Ct. Eep. 600; Trustees,' etc., v. Broadfield, 30 Ga. 1; Mechanics’ Bank v. Shaumburg, 38 Mo. 228; 2 Am. & Eng. Ency. of Law (2 Ed.), p. 820; Lloyd on Law of Building and Buildings (Ed. 1894), secs. 12 and 17; Mechem on Agency (Ed. 1889), sec. 308.</p> <p>(1) Appellant’s entire brief and argument loses sight of the real issue in the cause. By its amended petition, the appellant bases the right to recover upon the assertion that the defects complained of were: “Not visible or open to inspection, were latent, and could not have been, and were not known to plaintiff at tbe time said floor was laid, nor at the time said building was completed, and the final payment made to defendants, Hemmingliaus & Vollmer.” Upon this issue was joined, and the counter assertion made that the material was fully inspected by appellant, and by the person whom the. contract made appellant’s alter ego; that the material was thereupon incorporated into the building at great expense, and that, in turn, the building was accepted when completed. When thus viewed, nearly all the decided cases quoted in appellant’s brief became wholly inapplicable. Most of these are to the effect that a mere acceptance of a building, without more, is not a waiver of defects, especially if latent; that an architect, because an architect, has no power to change the contract between the owner and the builder; or that the architect can not exceed the powers which are vested in him by the terms of his employment. (2) What the trial court held in this case was, that if the architect and the owner were given full opportunity to inspect, and reject, any and all material and work furnished by the contractor, and that, after such inspection, they deliberately accepted something which was not in strict compliance with the contract and specifications, then, as to everything that was obvious, the owner is now bound. On the other hand, the trial court ruled, that if the contractors furnished any material containing defects which could not be detected by an architect of this vicinity, through the use of ordinary skill, then the contractors are liable to respond in damages to the owner, even though they acted innocently, and notwithstanding acceptance of the building by the owner. Ilartupee v. Pittsburg, 97 Pa. St. 107; Lewis v. Yagel, 77 Hun. (N. Y.) 837; Van Buskirk v. Murden, 22 Ilk 446.</p>

<p>Mtterer et al. v. Crawford, page 51, of this volume, followed and approved.</p>

— Hon. Argus GoXj Judge. There is nót a particle of evidence that Hendrickson ever went into the possession of this land, or any part of it, before August 1, 1866, nor any evidence of adverse possession of this tract of land by any person at any time. After the first of August, 1866, no limitations could begin to run against the title in the State or county. General Statutes, 1865, sec. 7, p. 746.

Appeal, from Grundy Oircuit Oourt. — lion. P. 0. Stepp, Judge. (1) The Constitution and statute exempting property from taxation are to be strictly construed against the claim of exemption. Washington University v. Rouse, 42 Mo. 323; State ex rel. v. Railroad, 89 Mo. 532; State ex rel. v. Railroad, 99 Mo. 4-2; State ex rel. v. Arnold, 136 Mo. 450; Scotland County v. Railroad, 65 Mo. 134; State ex rel. v. Lange, 16 Mo.

— Hon. J. F. Oreen, Judge. My contention is that the petition does not state facts sufficient to constitute a cause of action under section 650, or any other section of the Revised Statutes.

— I-Ion. L. B. Woodside, Judge. (1) Does the statute requiring railroad companies to construct crossings of a certain character where its railroad crosses “public roads or streets now or hereafter to be opened for public use” R. S. 1899, sec. 1103 permit roads or streets to be opened across the right of way and tracks of a railroad company without compensation — without any proceeding to condemn such right — in short, without “process of law,” or does it mean that such…

— Hon.- Jno. ~W. Wofford, Judge. (1) This evidence does not even tend to prove that the draft was signed at all, much less signed by someone as an .officer of the Harbine Rank. State v. Stowe, 132 Mo. 199; State v. Yerger, 86 Mo. 33; State v. Eay, 65 Mo. 490. (2) Under the rule laid down in State v. Stowe, 132 Mo. 199, this indictment must fall.

— Hon. Jas. T. Neville, Judge. (1) A full and complete legal title is sbown from the testimony to be in the plaintiff, and in this action he is enti-tied to recover. Schanewerk v. Hoberecht, 111 Mo. 22; Keet v. Baker, 141 Mo. 175; Beeper v. Lyon, 68 Mo. 216; Hunt v. Selleck, 118 Mo. 588. (2) There is no merger in this case — would have been none even if satisfaction of the deed of trust had been legally made on the record.

<p>Coterminous Landowners: AGREEMENT as to boundary: survey: ACQUIESCENCE. Where the owner of one-half of a lot had it surveyed, and thereupon notified the owner of the other half that he had about three feet of his lot in possession, and they agreed that the line as located by this surveyor should be the true dividing line between them, and one of them built a fence on this line with the knowledge of the other and without objection from him, it will be held, that, the line having been agreed upon and the three-foot strip held for more than ten years by the one who had it in possession - at the time the agreement was made, any verbal agreement thereafter made by him to buy the other a three-foot strip on the opposite side of his half of the lot in lieu of this strip so held by him, did not have the effect of annulling the line thereupon agreed upon, and hence that that other could not recover the three-foot strip by suit in ejectment.</p>

— Hon. James T. Neville, Judge. (1) The defendants being insolvent, and the plaintiffs having sought and been refused a rescission of their contract of sale, and there being no adequate remedy at law, the plaintiffs were’entitled to equitable relief. The bill clearly states a cause of action and it lay within the power of the court sitting as a court of equity to grant any relief consistent with the pleadings. Mason v. Black, 81 Mo. •347.

Circuit Court. — Hon. Jas. U. Slover, Judge. (1) There is absolutely no evidence in this case that either W. B. Sexton or E. P. Sexton was the agent of plaintiff in respect of the $1,800 bond and note in controversy, or in respect of the deed of trust given to secure the same.

<p>1. Unconstitutional Statute: section 2356: wages or Resident: suit in another state. Revised Statutes 1889, sec. 2356, providing that creditors shall not send any note, account, or chose in action out of the State for the purpose of bringing suit to subject to the payment thereof the wages of a resident of this State, is repugnant to the fourteenth amendment of the Federal Constitution, prohibiting a State from depriving any person of property without due process of law, in that the right to sue, which is one of the essential attributes of property, is taken away.</p> <p>2. -: -: -: -: SPECIAL PRIVILEGES TO FOREIGN citizens. Revised Statutes 1899, sec. 2356, providing that every person or corporation who shall send out of the State any note, bond, account, or chose in action for the purpose of instituting suit to subject to the payment thereof the wages of any resident of this State shall be guilty of a misdemeanor, is repugnant to article 4, see. 2, of the Federal Constitution, providing that the citizens of each State shall be entitled to all privileges of citizens in the several states, as citizens of foreign statesman violate such statute with impunity.</p> <p>3. -: -: -: -: special legislation. Revised Statutes 1899, sec. 2356, providing that every person, firm, or corporation who shall send out of the State any note, bond, account, or ' chose in action for the purposes of instituting suit to subject to the payment thereof the wages of any resident of this State shall be guilty of a misdemeanor, is repugnant to Constitution, art. 4, see. 53, forbidding the Legislature to grant any special or exclusive right, privilege, or immunity, and is therefore void.</p> <p>4. -: -: -: -: equai. protection. Revised Statutes 1899, see. 2356, providing that creditors shall not send any note, account, or chose in action out of the State for the purpose of bringing suit to subject to the payment thereof the wages of a resident of this State, and making it a misdemeanor so to do, is repugnant to the fourteenth amendment of the Federal Constitution, prohibiting a State from denying to its citizens the equal protection of the laws, in that it undertakes to arbitrarily separate wage earners from other classes of people, and provides for them a different rule of action.</p>

— Hon. W. W. Wood, Judge. (1) The bond sued on was voluntarily executed; was not in contravention of public policy nor violative of any statute; was for a valid consideration, by means of which defendant secured the funds of the county, including school moneys to be deposited with it. Now it will not be heard to deny its obligatory force. Rubelman Hardware Co. v. Greve, 18 Mo.

— Hon. E. L. Scarritt, Judge. (1) This action is upon an express contract to pay a definite sum. (a) Tbe petition pleads tbe contract in terms, (b) Tbe prayer asks judgment for tbe contract price or sum. (c)' Tbe plaintiff’s own testimony explicitly stated tbe contract, not only of employment, but also to pay five per cent of any sum received in compromise or ten per cent of any sum recovered tbrougb litigation.

— Hon. Argus Cox, Judge. Even under the act of 1895, in relation to homesteads, the estate of a deceased person has an interest in any land of which the ancestor died seized, subject to any right of homestead which may exist therein, and, independent of the homestead law, any interest, however small, of the estate in any land may be sold by the administrator for the payment of debts. 2 Woerners Am.'Law Adm.

— Hon. W. N. Evans, Judge. (1) The burden of proof is on defendant to show that the purchase was made in good faith, for value, and without notice, and without knowledge of such facts as would put him upon inquiry. Ins. Co. v. Smith, 117 Mo. 261. (2) The fact that the land for 'which defendant was paying $1,000 was mortgaged for $35, and was sold under snob, mortgage for $42, was enough witbin itself to charge him with notice, or put him upon inquiry.

<p>Appeals: title to land: jurisdiction. This court has no jurisdiction of an appeal from a judgment for defendants in a suit in equity to cancel a deed of trust on the ground that the debt of $950 it was given to secure has, been paid., where the only question is whether or not the debt has been paid, for that issue only incidentally involves title to real estate.</p>

— Hon. A. D. Burnes, Judge. (1) Instructions 1 and 3, given at tbe request of the State, are improper as an entirety, or singly, for 1- alone allows a conviction for murder in the first degree if the killing was done deliberately,” etc., while that technical term is no where defined except in said instruction 3, where lack of “heat of passion” and “sudden provocation,” equally technical terms, are used in the definition without any explanation as to what is meant by these…

Louis City Circuit Court. — Hon. Daniel Dillon, J udge. (1) The mode or method of dedicating a street, and performing the act of acceptance by the city of St. Louis is distinctly expressed both in the charter and ordinance of the city and by the statute of the state. Charter St. Louis, secs. 1 and 15, art. 6; R. S. 1889, secs. 1123 and 1137.

— Hon. E. L. Scarriit, Judge. (1) When tbe mortgaged premises consist of distinct tracts or separate parcels of ground,■ it is tbe uniform rule that they must be sold in separate parcels. 9 Encyc. PI. and Pr.. 513; Freeman on Ex. Sales, sec. 295; Wiltsie on Mort. Foreclosures, 591, sec. 488; Sumrall v. Chaffin, 48 Mo. 402; Obesley v. Cbesley, 49 Mo. 541; Tatum v. Holli-day, 59 Mo. 422; Kelly v. Hurt, 61 Mo. 463; Gray v. Sbaw, 14 Mo. 341; White v. Watts, 18 la. J4.

Louis City Circuit Court. — Hon. John M. Wood, Judge. (1) On the whple evidence in this case, the verdict of the jury was right, and therefore the appellant is entitled to have its appeal sustained and the order for a new trial vacated. Ittner v. Hughes, 133 Mo. 689; Vogg v. Railroad,. 138 Mo. 180..

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) The fifth clause of the will of John Gates, deceased (being the clause under which plaintiffs claim), violates tbe rale against perpetuities, and the limitation over is void, and the estate vested in Jacob S. Oates in fee, or, if the whole clause is void, the land descended to all of the heirs of John Gates; none of the title vested in the plaintiffs in either event, for that to which Jacob S. Gates was entitled,…

Prohibition. (1) Prohibition will lie only where the act to be restrained is judicial or quasi-judicial, in its nature. State ex rel. y. Clark Oo. Court, 41 Mo. 44; Hockaday v. Newson, 48 Mo. 196; High on Extraordinary Legal Eemedies, sec. 764a. (2) Prohibition will be used where there has been an excessive use of jurisdiction. State ex rel. v. Hirzel, 137 Mo. 447; Eailroad v. Wear, 135 Mo. 256; State ex rel. v. With-row, 133 Mo. 500; State ex rel. v. Elkin, 130 Mo. 90.

<p>Appeal from St. Louis City Circuit Court. — Don. Franklin Ferris, Judge.</p>

Mandamus. (1) The judgment in Kansas City’s favor against E. A. Stevens for $500 ón tbe appeal bond bas nothing in it upon which the pardoning power of the Governor can lawfully operate.

Louis Court of Criminal Correction. — Mon. David Murphy, Judge. (1) There never was moral merit in actions of this sort at any place or in any period of tbe world. There is no legal merit for such in this age and State.

— lion. Geo. F. Longan,, J udge. (1) The trial court committed error in overruling defendant’s motion to quash tbe indictment. 21 Am. and Eng-Encv. of Law, pp. 248, 249; People v. Yice, 21 C'al. 344; 1 Bishop. 426; 2 Wharton, 2105; 1 Wharton, 290, 293; Com. v. Clifford, 8 Cush. (Mass.) 215. (2) The trial court committed error in not instructing on the whole case. State v. Taylor, 118 Mo. 153; State v. Lake, 107 Mo. 147.

— Hon. William 8. Herndon, Judge. (1) The trustee was a necessary party in this suit, and being such there was no necessity to take advantage of his not being made a party by either demurrer or answer, though it was set out in answer. Wolf v. Ward, 104 Mo. 128; Hitch v. Stonebreaker, 125 Mo. 138; Eussell v. Grant, 122 Mo. 161. This suit should have been brought in the names of the heirs and representatives of H. O. Markwell.

— Hon. W. W. Bucher, Judge. Tbe evidence conclusively shows that the defendant, at the instance of Jacob Cunningham, now deceased, and under and from whom the plaintiffs claim, sold his property in Colorado and moved with his family to said Cunningham’s and toóle charge and possession of the farm in question under an arrangement and agreement with said Cunningham to occupy and use the same for at least a term of five years. This term began in the spring of the year 1893.

— Hon. Reuben F. Roy, Judge. (1) Tbe court permitted R. A. Campbell to testify that he understood from Benj. K. Whitaker that there was an arrangement between him and his brothers and sisters, that he was to get the lands in controversy, and they were to be compensated for their interest in the land out of Benj. K. Whitaker’s interest in the personal property in the State of Mississippi.

— Hon. P. 0. Stepp,, Judge. (1) The Constitution and statute exempting property from taxation are to be strictly construed against the claim of exemption. Washington University v. Rouse, 42 Mo. ■323; State ex rel. v. Railroad, 89 Mo. 532; State ex rel. v. Railroad, 99 Mo. 42; State ex rel. v. Arnold, 136 Mo. 450; ■Scotland Co. v. Railroad, 65 Mo. 134; State ex rel. v. Lange, 16 Mo.

— Hon. Geo. F. Longan, Judge. (1) The indictment is in good form; it follows the language of the statute, and is not subject to serious objection. (2) Defendant objects to instruction numbered three on part of the State, for the alleged reason that it assumes the fact that defendant committed the act charged in the indictment.

<p>Appeal from Grundy Circuit Court. — Hon. P. G. Stepp, Judge.</p> <p>(1) Different parts of a building may be owned by different parties. 1 Washburn on Real Property (3 Ed.) 12, 335; Newhoff v. Mayo, 48 N. J. Eq. 619; Hahn v. Baker Lodge, 21 Ore. 30; Cheeseborough v. Green, 10 Conn. 318; Rhodes v. M’Cormick, 4 Iowa, 368; M’Cormick v. Bishop, 28 Iowa, 237; Tiedeman on Real Property (2 Ed.), sec. 621; Ottumwa Lodge v. Lewis, 34 Iowa, 67; Loring v. Bacon, 4 Mass. 575; Wyman v. St. Louis, 17 Mo. 337; Wash, on Easements (4 Ed.), 639; Graves v. Besban, 26 N. T. -498. These authorities settle beyond question the proposition that as to the building on the lot in question in the suit at bar, Mrs. Lilly is the owner of the first and second stories and basement of said building, and that the Knights of Pythias are the owners of the third story, and that they and Mrs. Lilly are not tenants in common as to any of the property involved in this suit, but are separate owners of their respective parts of the building. (2) Where there are separate parties and separate rights there must be separate liens; and since in this case separate owners are sought to be charged in one account, and the separate properties of separate owners are sought to be charged in one lien, the lien must fail. Kearney v. Wurdeman, 33 Mo. App. 456; Dugan v. Higgs, 43 Mo. App. 166; Phillips on Mech. Liens (3 Ed.), 657, sec. 373; Gorgas v. Douglas, 6 Stag. & R. 512; Kerbaugh v. Henderson, 3 Phila. 17; Davis v. Earr, 13 Penn. St. 167; Edwards v. Edwards, 24 Ohio, 402; Allen v. Milling Co., 73 Mo. 688; Henry v. Mahone, 23 Mo. App, 87. (3) The account filed in this case is not a just and true account within the meaning of the Mechanics’ Lien Law, and will not support the lien sought to be enforced in this case. R. S., sec. 6709, requires that the plaintiff in this case should have filed within the time therein limited, with the clerk of the circuit court of Grundy county, a just and true account of the demand due it after all just credits were given with the name of the owner or contractor, or both, if known to its agent. The account filed for a lien in this case does not meet these requirements, for several reasons: First: Because Mrs. Lilly can not know from the account filed how much is due plaintiff from King for ma- ' terials which entered into the construction of her building. Reitz v. Ghio, 47 Mo. App. 289; Nelson v. Withrow, 14 Mo. App. 277., Second: This is not á just and true account because there is a mingling of severál accounts. Reitz v. Ghio, 47'Mo. App. 287; Schulenburg v. Robison, 5 Mo. App. 564; Phillips on Mec. Liens (3 Ed.), 657; Planing Oo. v. Christophel, 60 Mo. App. 106. (4) A mechanic’s lien can not be enforced for materials unless they are furnished under a contract with the owner, or his contractor, agent, trustee or sub-contractor. And since the materials furnished by plaintiff for the Pythian Temple were not so furnished as to Mrs. Lilly, the -lien for them can not, under any circumstances, be enforced against her property; and since the items of those materials are so commingled and confused with others, in the account filed, that they can not be separated except by extrinsic evidence, the whole lien is lost. R. S., sec. 6705; Planing Mill Oo. v. Christophel, 60 Mo. App. Ill; Hause v. Thompson, 36 Mo. 451; Hause v. Carroll, 37 Mo. 578; Barker v. Berry, 8 Mo. App. 446; Horton v. Railway Co., 84 Mo. 602; Mill Co. v. Brundage, 25 Mo. App. 268; Page v. Betts, 17 Mo. App. 366; Mollahon v. Vickery, 4 Mo. App. 225; Woodward v. McLaren, 100 Ind. 586; McAdowv. Sturtevant, 41 Mo. App. 226.</p> <p>(1) There is an improper joinder of parties defendant in this case. As there were two separate and distinct owners and two separate and distinct contracts for building, a single lien could not be enforced against the property. Sec. 6729, R. S. 1889. The section of the statute above quoted, was never intended to cover a case where the improvement was erected by different owners and under separate and different contracts; for it is specifically provided in the section that in order to enforce a single lien against two or more buildings, although connected and erected together, and under one roof, they must have been erected under one general contract. Sec. 6706, R. S. 1889. (2) This instrument is a clear absolute conveyance from Mrs. Lilly to these defendants as trustees of the lodges, and clearly divests her of all rights, title and interest in and to that part of the building sought to be conveyed by said instrument as well as her interest in the ground upon which the improvement stands to the extent necessary for the enjoyment of the use of the improvement thereon. 15 Am. and Eng. Ency. of Law, 7; Roby v. University, 86 Vt. 564; 15 Am. and Eng. Ency. 9. (8)' The lien is upon whatever interest the builder of the superstructure may havé therein. McCreary v. Osborn, 9 Cal. 119; Johnson v. .Dewey, 36 Cal. 623; Worden v. Hammond, 37 Cal. 61; Goldhime v. Clark (Md.), 13 Atl. 363; English v. Eoot, 16 Miss. 444; Garrett v. Stevenson, 3 HI. 261; 15 Am. and Eng. Ency. of Law, 10. (4) Our statute gives a lien by virtue of a contract with the owner of the land and section 6706 extends this lien to any interest such owner may have at the time of the contract; if he has only a bond for a deed, he can not by any act of his impair the title of his vendor or give tbe mechanic or materialman any better title than be bimself bad at tbe time be made tbe contract. Hickox v. Greenwood, 94 Ill. 266.</p> <p>(1) In this case there is no mingling, in tbe account filed with tbe mechanic’s lien of plaintiff, of lienable and non-lienable items, and tbe reported cases where such mingling took place and was condemned do not apply to tbe case at bar. Price v. Merritt, 55 Mo. App. 640. There are no items in plaintiff’s account in this case that are non-lienable under our lien law. Neither can it be objected that this case comes under tbe law of those cases where tbe lienor lumped several items in one sum. In this case tbe account is carefully and correctly itemized and stated with particularity and definiteness, and no part of tbe account is a lumping one. If tbe material sued for in this case bad been furnished by two different materialmen, as in O’Connor v. Railroad, 111 Mo. 185, tbe case would be different. Here all tbe material sued for was furnished by tbe plaintiff. Nor does tbe case of Dugan v. Higgs, 43 Mo. App. 161, apply to this case. (2) In this case now before tbe court, there was only one contractor, Ring, to whom all tbe material sued for was sold by plaintiff, and King was tbe contractor of all tbe owners of tbe property charged with tbe lien. There was no abandonment by tbe first contractor, and no successive contracting parties, as in Dugan v. Higgs, supra. Bambrick v. Oburcb Association, 53 Mo. App. 226. (3) Our mechanics’ lien law (sec. 6705, R. S. 1889), gives tbe lienor a lien upon “any building, erection or improvement upon land” for bis material furnished therefor. Tbe law gives tbe lien on each building for which materials are furnished. Accordingly it was held in Eitzgerald v. Thomas, 61 Mo. 499, and other cases, that different buildings on different lots, although the lots were contiguous, could not be united and proceeded against by the materialman in the same lien, and this continued to be the law until changed by sec. 6729, R. S. 1889. But it has never been' held that a materialman, who furnished material for an entire building, should divide up his account and file a lien against each room or each story of the building. Secs. 6706 and 6707, R. S. 1889.</p>

Mandamus. (1) Mandamus will lie where court refuses to act and strikes case from the docket. The State ex rel. Bayba v. Phillips, 97 Mo. 331; State ex rel. Huey v. The Cape Gir-ardeau Court of Common Pleas, 73 Mo. 560; The State ex. rel. Schonhoff v. O’Bryan, 102 Mo. 254; The State ex rel. v. Wofford, 121 Mo. 62. (2) The original decree was interlocutory.

— Hon. T. B. Robinson, Judge. Instruction 1 is manifestly erroneous being a decided comment upon tbe evidence, in undertaking to tell tbe jury wbat was tbe sum of certain facts in evidence, from wbicb it was for tbe jury, and not tbe court, to deduce a conclusion.

— Hon. Dorsey 17. Shackleford, Judge. (1) The relations were those of natural affection and interest and no undue influence was shown, much less any actual fraud, and under the evidence the chancellor found against the weight of the testimony and his finding should be reversed with directions. Hamilton v. Armstrong, 120 Mo. 597. (2) Rachel Groff indorsed the notes over to her husband, and Lizzie says her sister wanted him to have them.

<p>1. Limitations: account: vabious items. If all items of an account except the last were made more than five years before suit was brought, and there is no proof to sustain that item, the whole account is barred by limitations.</p> <p>2. -: ADMINISTRATION : PRESENTATION 03? CLAIM : WAIVER. A Verbal statement by an administrator that he would pay claimant every . dollar coming to him if he would not put in a claim against the estate, made by him before he had been appointed administrator, is not a waiver of service, and unless the claim is presented within two years after the issuance of letters, it is barred. Such promise could only bind the estate when made in writing and signed by the administrator after letters of administration had been issued to him.</p> <p>3. -: -: -: promise TO pat. Nor is such admission and promise, no itemized account being exhibited to the administrator, such a Compliance with the law as amounts to a presentation of the claim.</p> <p>4. -:-: barred debts: revival. The administrator has no power to revive valid debts against the estate which have been barred by the general statute of limitations.</p> <p>5. Statute of Frauds: promise to pat intestate’s debts. An admin-istratrix who promises to pay a debt of her husband can not be held individually liable unless such promise is in writing.</p>

Transferred from St. Louis Court of Appeals. 1st. The circuit corirf misconstrued the will of Barbara Lutz, deceased. Upon the law and the evidence in the case the judgment should have been for plaintiff and order of sale made as prayed for. The will is in evidence, relied upon by all the parties to this action. It was made by M. Barbara Lutz just six weeks prior to her death.

Circuit Court. — Hon. E. P. Gates, Judge. (1) Tbe eleventh instruction, given at tbe request of Kansas City, is erroneous in tbis, that it does not properly define tbe benefit to tbe city at large. Newby v. Platte County, 25 Mo. 258; Garrett v. St. Louis, 25 Mo. 505; Shee-han v. Tbe Good Samaritan Hospital, 50 Mo. 155; Neenan v. Smith, 50 Mo. 528; Kansas City v. Morton, 117 Mo. 446; Cooley on Tax.

— Son. W. W. Wood, Judge. (1) The Jackson Circuit Court erred in changing the Tenue, and the Johnson Circuit Court erred in refusing to remand, (a) Questions arising upon an application for change of venue may be presented when the matter, as here, was preserved by bill of exceptions in the original court. Stearns v. Railroad, 94 Mo. 317; Squires v. Chillicothe, 89 Mo. 232. Or by motion to remand interposed in the court to which the cause was removed.

<p>Appeals: federal statute. Where the record fails to show any ruling by the circuit court questioning the validity of any federal statute, or any ruling of the trial court upon any federal statute brought to the appellate court for review, there is nothing which gives the Supreme Court jurisdiction of the appeal in a suit for the recovery of $600, although the court of appeals has transferred the ease to_ • this court on the ground that “said cause involves the construction of the federal statutes.” Nor has this court jurisdiction simply because the case involves the construction of a federal statute, but only where the validity of a federal statute is drawn in question.</p>

— Hon. Jas. T. Neville, Judge. (1) The section of tbe statute under which, this suit is brought is in conflict with section 9 of article 12, of the Constitution, and .hence void.

Habeas Corpus. (1)-Penal statutes are slrictissimi juris, must be'strictly construed against the state and for tbe benefit of the citizen. Rozelle v. Harrison, 103 Mo. 339; St. Charles v. Hackman, 133 Mo. 634; Potter’s Dwarris on Statutes and Const., pp. 48, 24-7; Sutherland on Stat. Const, sec. 208; Sedgwick on Stat. Const., p. 267; Endlish on Interp. of Stat, secs. 85 and 358..

— Hon. George F. Longan, Judge. (1) Appellant being old, ignorant and afflicted and living with her daughter and son-in-law at the time, any trace of coercion, surprise, or over solicitation will avoid a voluntary conveyance such as this.

— Hon. Jno. G. Wear, Judge. (1) The swamp lands donated by the United States to the State of Missouri under the acts of September 28, 1850, and donated to the several counties by an act of the Legislature, March 27, 1868, are held for school purposes only, and are exempt for ordinary liability for county indebtedness. State ex rel.

Louis Oitj Circuit Court. — Son. James F. Withrow, Judge. (1) On appeal from an order of the trial court in refusing to revoke the appointment of a receiver, this court will review the entire record, and determine therefrom whether there was any ground upon which the receiver should have been appointed or upon which the court should have refused to revoke the appointment, as the case may be. Merriam v. Railroad, 136 Mo. 145; Glover v. Investment Co., 138 Mo. 408.

Transferred from St. Louis Court of Appeals. (1) If there was any mistake at all in regard to the matter, it was purely the negligent mistake of the plaintiffs themselves. Neither Mr. Schoeffel nor Mr. Nicond knew the date of the bond and did not pretend to know anything of its date. The Belands knew more about it than Schoeffel, and ■ if they did not the means of full information was easily within their reach and they should have sought for it and obtained it.

— Hon. Joseph, D. Perhins, Judge. (1) Tbe annual settlements are only prima facie evidence of their correctness and the same rule applies to the surrender settlement of the executrix, and are not binding or conclusive evidence that Fountain had the money on hand at that time, and the sureties may show anything contrary to the settlement, and a final settlement is only prima facie evidence as to sureties. State to use v. Jones, 89 Mo. 473; Fevev v. McGowan, 68 Mo.

— Hon. Jas. Orchard, Special Judge. (1) Tbe case stated in tbe petition was a violation by defendant of a duty imposed upon it by an ordinance of tbe city of West Plains in running a train witbiii tbe limits of tbe city and at a place where persons were in tbe habit of crossing its track at a greater rate of speed than six miles per hour. No such case was proven.

— Hon. Jno. W. Henry, Judge. (1) In instruction numbered 1, given at the instance of plaintiff, the court told the jury that plaintiff.had shown by the deed and title papers introduced in evidence that it was the owner of the record title from the United States government down to the present time, of the land north of lots 9,10 and 11, including the land described in the petition. ThL was error. Eeese v. McDaniel, 115 Mo. 145; Cooley v. Golden, 117 Mo. 33.

— Hon. Wm. L. Jarrott, Judge. (1) The real error committed was in the court’s counting eighteen or nineteen of the official ballots which had been properly made out by the county clerk, but were changed after leaving his hands so that they were no longer official ballots when cast.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) Under tbe facts of tbis case, instruction numbered 1 was a correct statement of tbe law, and tbe court, therefore, erred in sustaining tbe motion for a new trial on tbe ground that it was not. Tbe deceased, with bis comrades, was at tbe crossing before tbe train. His comrades testified that they saw tbe train approaching, and they all said that it was running very rapidly.